New York Lawyer's Legal Updates

Rights for the Mentally Disabled to Have Representation in Deportation Proceedings

We are all familiar with the constitutional right to legal counsel for those individuals who cannot afford a lawyer in criminal cases. However, in immigration cases, such as deportation, immigrants do not have the same right to legal counsel. They must represent themselves if they cannot afford an attorney.

According to a New York Times article, a California federal judge set a new precedent by ordering immigration courts in three states to provide legal representation for mentally disabled immigrants in detention and facing deportation when they cannot defend themselves. The ruling resulted from a 2010 class action lawsuit brought by the American Civil Liberties Union (ACLU). In the case in question, immigrant José Antonio Franco González was detained for more than five years after the court closed his immigration case. Because of mental retardation, he did not even understand the situation much less find that he was capable of defending himself in court.

The U.S. Justice Department oversees all immigration courts and accepted the ruling in the class action case. Consequently, federal immigration officials must make government paid legal counsel available nationwide to all immigrants with mental disabilities who face issues in immigration courts.

This is a significant change to the previous procedure where children and the mentally retarded were expected to defend themselves in immigration proceedings and were not provided with legal counsel.